unconstitutional

A federal appeals court has ruled that the national health care law's individual mandate is unconstitutional, calling it "an unprecedented exercise of congressional power."

Klein notes that "The three-judge panel that made the ruling was comprised of two Democrats, so this will be hard for the Obama administration to dismiss as the work of a lone activist conservative judge. And this virtually gaurantees that the Supreme Court will take up the case."

The Appeals Court for the 11th Circuit, based in Atlanta, found that Congress exceeded its authority by requiring Americans to buy coverage, but also ruled that the rest of the wide-ranging law could remain in effect.

The legality of the so-called individual mandate, a cornerstone of the 2010 healthcare law, is widely expected to be decided by the Supreme Court. The Obama administration has defended the provision as constitutional.

The case stems from a challenge by 26 U.S. states which had argued the individual mandate, set to go into effect in 2014, was unconstitutional because Congress could not force Americans to buy health insurance or face the prospect of a penalty.

that the individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975- page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.

It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, Congress “has never required people to buy any good or service as a condition of lawful residence in the United States.” CBO MANDATE MEMO, supra p.115, at 1. Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption—past, present, or in the future. Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry.

Rich Lowry makes a good point about federal district court judge Gladys Kessler’s recent decision, which held that ObamaCare’s individual mandate is not unconstitutional. (That’s the appropriate terminology; judges have no more authority to declare laws “constitutional” than juries have to declare someone “innocent.”) Judge Kessler, a Clinton appointee, appears to support ObamaCare as a matter of pol